Dispute concerning job classification
and wage rates for Bionetics employees
working on Contract F44650-97-D0005
at the Precision Measurement Equipment
Laboratory, Ellsworth Air Force Base,
South Dakota.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For Petitioners Bionetics Corp. Employees: James Aune, Charles Eickoff, Nickolas Jenniges, Gregory Larson, Jose Pena, Timothy Sanders, Michael Vasquez, Jonathon Wells, pro se, Ellsworth Air Force Base, South Dakota
For Respondent Administrator, Wage and Hour Division:
Ellen R. Edmond, Esq., Douglas J. Davidson, Esq., Steven J. Mandel, Esq., Howard J. Radzely, Esq., U.S. Department of Labor, Washington, D.C.
For Intervenor United States Air Force: Jesus N. Pernas-Giz, Patrick Air Force Base, Florida
DECISION AND ORDER OF REMAND
This case arises under the McNamara-O'Hara Service Contract Act, 29 U.S.C.A. §§ 351-358 (West 1994) (the SCA), as implemented by the regulations at 29 C.F.R. Parts 4 and 8. It involves a contract between Bionetics Corporation and the Air Force for operation of the Ellsworth Air Force Base Precision Measurement Equipment Laboratory (PMEL) from October 1, 1997, through September 30, 2002.1 The Petitioners are Bionetics employees working in the PMEL at Ellsworth in South Dakota.
1 The Petitioners have advised the Board that the Ellsworth PMEL is currently being operated under a new contract awarded to the Yulista Corporation. See Board Notice dated Oct. 28, 2002.
2 In addition, the District Office investigator found that the PMEL technicians performed "a wide variety of duties" specifically including complete calibration of test and measurement equipment, comparison of instrument performance to a standard known accuracy, correction adjustment to minimize errors, proper calibration of equipment to meet specifications, relating quantitative information to measurements of physical and/or chemical properties, calibration according to standards traceable to the National Institute of Standards and Technology, and calibrations to "full manufacture" specifications. AR Tab I.
3 As we discuss later, the W&H conformance ruling regarding the PMEL at Robins AFB is relevant to our review of the Administrator's final ruling. Although the AR does not contain a copy of the Robins AFB ruling or identify the date of its issuance, the Administrator's brief states that the ruling was issued on November 24, 1998. Administrator's Statement at 19.
4 The attachments referenced in the Petitioners' November 16, 2000 letter to W&H are not included in the AR. See AR Tab L.
6 Upon the "discovery" of a failure by the contractor or the contracting agency to comply with their obligations to initiate a conformance action pursuant to Section 4.6(b)(2)(i)-(v), W&H is required to issue a final determination regarding the position to be conformed and to implement that ruling retroactively to the beginning of performance of the work that is at issue. 29 C.F.R. § 4.6(b)(2)(vi).
7 The Administrator has identified the date of issuance of the Robins AFB conformance ruling as November 24, 1998. See n.3 supra.
8 29 C.F.R. § 4.152(c)(1) also precludes using conformance procedures to establish trainee and helper classifications as well as using it to "artificially split or subdivide classifications listed in the wage determination." Those provisions are not relevant to this appeal.
9 For example, one category of occupations that is listed on the wage determination applicable to the Bionetics contract, WD No. 1994-2486 (Rev. 12), covers "Mechanics and Maintenance and Repair Occupations" and another category covers "Administrative Support and Clerical Occupations." AR Tab H. We previously noted that the ETM II classification was a Maintenance occupation, and as such it falls under "Mechanics and Maintenance and Repair Occupations." The Engineering Technician IV classification falls under the "Technical Occupations" category. Id.
Except as provided in paragraphs (c) and (d) of this section, the Board will not review a wage determination after award, exercise of option, or extension of a contract, unless such procurement action was taken without the wage determination required pursuant to §§ 4.4 and 4.5 of part 4 of this title.
11 29 C.F.R. § 8.7(b) provides, in pertinent part:
A petition for review of a final written decision (other than a wage determination) of the Administrator or authorized representative may be filed by any aggrieved party within 60 days of the date of the decision of which review is sought.
Conformance actions and wage determination are treated differently under the SCA regulations. The regulations require wage determinations to be issued prior to contract award. 29 C.F.R. §§ 4.4, 4.5, 4.55(c), 4.56(a); but see 29 C.F.R. §§ 4.4(g), 4.5(a)(2) (providing for substitution of more recent wage determinations in certain circumstances); 29 C.F.R. § 4.5(c)(1), (2) (permitting Administrator to require retroactive application of wage determinations pursuant to § 10 of the SCA, codified at 41 U.S.C. § 358). Incorporating wage determinations in the procurements process provides a firm basis on which both the contracting agency and the prospective contractors can estimate the labor costs of the contract. See COBRO Corp., slip op. at 10-11. In contrast, SCA regulations require that the contracting parties initiate conformance actions, which cover only those job classifications not listed on the wage determination, after contract award. 29 C.F.R. § 4.6(b)(2)((i), (ii).
12 Also contrary to the Air Force's contention, back pay awards are authorized in conformance actions. Just as 29 C.F.R. § 4.6(b)(2)(v), (vi) requires that final classification and wage rate rulings on conformance actions be implemented retroactively to the beginning of work under the contract, the Board's authority to award back pay in such cases is not limited. 29 C.F.R. Part 8, Subpart C; see COBRO Corp., slip op. at 27; Rural/Metro Corp., slip op. at 10-11.
13 Section 4.6(b)(2)(iv)(B) permits a contractor to set the wage rate for a conformed position, in limited circumstances, through a process called "indexing." 29 C.F.R. § 4.6(b)(2)(iv)(B). Nothing in this record suggests that indexing would have been an appropriate means of setting the wage rate for the PMEL technician for the October 1, 1997 – September 30, 2002 Ellsworth AFB contract. Cf. Russian and East European Partnerships, slip op. at 10-13, 17-18 (concluding that Section 4.6(b)(2)(iv)(B) criteria to invoke indexing provision not met). Although Bionetics' August 22, 2001 response to the W&H investigation proposed that indexing be used to calculate future increases in PMEL technician wage rates, the Administrator's June 21, 2002 ruling expressly prohibits reliance on indexing to set future wage rates for the PMEL technician under the Ellsworth AFB contract. AR Tabs A, H.
14 We have not reviewed the substance of the materials the Petitioners have proffered. In addition, because of our remand for further evidentiary development and findings by the Administrator, it is unnecessary for us to address a number of the specific factors the Petitioners cite in support of their challenge to the final ruling.